Majority
p. 521Minnie Schalk, an Infant, by Jacob Schalk, Her Guardian ad Litem, Respondent, v. The Commercial Twine Company, Appellant. First Department, December 6, 1907.
Headnote
Master and servant — negligence — injury by fall on slippery floor — weight of evidence'.The plaintiff, in the employ of the defendant, was injured by falling so that her hair caught in a machine, and charges her master with negligence in allowing the floor to become slippery by accumulated oil. Evidence examined and Held', that the defendant established by a preponderance of evidence that there was no oil on the floor at the time of the accident, and that a finding to the contrary was against the weight of the evidence.
Appeal by the defendant, The Commercial Twine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of April, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 17th day of April, 1907, denying the defendant’s motion for a new .trial made upon the minutes.
Frederick Hulse, for the appellant.
Clarence M. Lewis, for the respondent.
This judgment must be reversed for the reason that the verdict, of the jury in favor of the plaintiff was against the weight of evidence. The plaintiff was employed to work at a machine in the factory of the defendant, and on the date charged in the complaint, while so at work, her hair was caught in the machinery and she sustained injuries' to the scalp of a more or less serious nature. The theory of her case is that while walking near the machinery she slipped upon the floor at a point near the machinery and that the slipping was caused by the presence of oil on the floor, which the defendant had negligently permitted to accumulate and remain there. The issue, of fact was as to the condition of the floor and as to oil being upon it. To maintain that issue the plaintiff testified in her own behalf. There were no spectators of the
p. 522
accident, but the plaintiff testified that the floor near the machine was saturated with oil; that it had previously been kept clean until two weeks before she was hurt," and that for two weeks prior to the accident nothing at all was done to the floor. The machinery was in motion as she was passing by it. On the other hand, and'in denial of this alleged condition of the floor, there were many witnesses produced'by the defendant who testified that on the day and at the time the accident happened to the plaintiff, there was no oil on the floor. One of the witnesses, Perry, was working on the floor where the accident happened at the time it occurred, and he testified that he heard the plaintiff scream; that he was thirty feet away from her; that he took her hair out of the machine in which it had become entangled and that he observed the condition of the floor at the time of the accident and that it was not oily. The witness Daly testified that he was present on the floor on that day; that he was oiling machinery; that his attention was attracted to the, accident; that he had oiled the plaintiff’s machine himself a "half hour before, and that at that time he observed the condition of the floor and that it was not "oily or slippery. Another witness, Kate Cooper, testified that she was at work; that the day before the accident she worked on the machine next to that on which the plaintiff worked, and that there -was no oil on the floor. Annie Buttner testified that, although not working there, she was about thirty feet away from the plaintiff when the accident happened; that she had been at the plaintiff’s-machine about half an hour before the accident and that she observed the condition of the floor and that there was no oil on it. Another working girl, Lizzie Biordan, testified that she was working at the factory when the accident happened to the plaintiff; that she went around the plaintiff’s machine during the dinner hour; that she' never saw any oil drip on the floor and that the floor was not slippery. All these witnesses testified that they never heard of any one slipping on the floor. Another witness, Agnes Donahue, testified that she was employed by the defendant at the time the accident occurred; that she went to the plaintiff’s machine during the dinner hour, but did not see any oil on the floor. She testified : “ I tell you with so much certainty that the floor was clean at that time-because I.was taking things away from the floor and put them in baskets and sent them downstairs; the floor was clean when I was looking
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at it. The floor was clean; there was no dirt on it. There were no oil stains around the floor. There was not .oil on the floor at all. The floor did not give evidence at that time of oil that at any time had been saturated upon the floor. The boards were dry; absolutely dry.” Mamie Tumulty testified that she asked the plaintiff how the accident occurred and that the response was that the plaintiff was stooping down oiling the spindle and her hair was caught in the flyers. This witness swore that the floor was not oily as did also another witness, Martha Barnes,who testified that before the accident she saw the plaintiff picking waste from the machinery; that there was no oil" onthe floor, and that it was not slippery. None of these witnesses is impeached in any way ; and inasmuch as the imputed negligence of the defendant is the maintenance of a slippery floor, and that is' assigned as the cause of the accident, and the great preponderance of unimpeached testimony is that the alleged cause of the accident did not exist, it necessarily follows that the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.
Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.